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Preclearance Bill C-23

What is Bill C-23

Bill C-23 known as the Preclearance Act, 2016 was tabled in the House of Commons on June 17, 2016 by Public Safety and Emergency Preparedness Minister Ralph Goodale. The bill would enshrine in law a reciprocal agreement for customs and immigration pre-clearance signed by the governments of Stephen Harper and Barack Obama in 2015. Both houses of Congress passed the U.S. version of the bill in December.

Replaces and expands on the provisions of the Air Transport Preclearance Agreement signed in 2001 between the Canada and the U.S.

What is Preclearance

Preclearance allows Canadian visitors to the U.S to clear U.S Customs and Immigration while still in Canada at a Canadian point of departure. Eight Canadian airports currently offer preclearance along with the Port of Vancouver, at Vancouver train station and some B.C-Washington ferry routes. This is to be expanded to include Toronto’s Billy Bishop and Quebec City’s Jean Lesage airports along with Montreal’s Central Station and Rocky Mountaineer a Canadian tour company offering train vacations on four rail routes in BC and AB. Goal is easier access to the US for Canadians.

What is it Different

Enhanced authority of US border agents operating in Canada. They would be granted the right to detain for an unspecified amount of time travelers who have entered the preclearance area and then changed their minds, the power to conduct strip searches in certain situations and the potential authority to carry arms. Canadian border agents operating in preclearance areas in the U.S would have equivalent powers.

Concerns

Currently a Canadian going to the U.S. through a preclearance area (on Canadian Soil) can simply turn around and walk out if they choose to do so. Under the proposed bill they would not be able to walk out and instead would be forced to answer questions. If a person tried to leave they could be charged with failing to co-operate which under the bill is an offense they can be arrested for and potentially charged. Given the additional authority granted to Preclearance officers the issue of “unreasonable delay” would also come into play. For example what is reasonable and what is unreasonable delay.

Under existing law a strip search can only be conducted by a Canadian officers, though a US officer can be present. C-23 states if a Canadian officer is unavailable or unwilling, the U.S officer can conduct the search. Concerns exist surrounding the definition and application of “unavailable” or “unwilling”. C-23 would also allow U.S officers to carry side-arms while on duty in Canada if working in an environment where CBSA officers are normally armed.

With regards to Permanent Residency additional concerns arise. Under existing law, if a CBSA officer feels that a permanent resident has violated the terms of their residency (not really living in Canada for example) the officer can report them to Citizenship and Immigration but must allow the person to enter Canada. Permanent resident like Canadian Citizens enjoy an absolute right of entry. C-23 changes that as a CBSA agent posted at a U.S. airport has the right to prevent the resident from boarding a flight to Canada. The resident would have the option to enter from a land border where their right to enter Canada would still apply.

Is this Good or Bad for Canada

Prior to the election of President Trump the media for the most part described this a positive development with easier access to the US for Canadians. Post Trump the reaction has been different given concerns related to developments including the immigration executive order and potential impact on certain religious or ethnic groups. At the end of the day preclearance is a reality and some would argue having on Canadian soil where we have the protections of the Charter of Rights and Freedoms, as an example, is preferred over U.S. laws while in the U.S.

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